The Abilities required in a Judge

The abilities required in a good Interpreter of the Law, that is to say, in a good Judge, are not the same with those of an Advocate; namely the study of the Lawes. For a Judge, as he ought to take notice of the Fact, from none but the Witnesses; so also he ought to take notice of the Law, from nothing but the Statutes, and Constitutions of the Soveraign, alledged in the pleading, or declared to him by some that have authority from the Soveraign Power to declare them; and need not take care before-hand, what hee shall Judge; for it shall bee given him what hee shall say concerning the Fact, by Witnesses; and what hee shall say in point of Law, from those that shall in their pleadings shew it, and by authority interpret it upon the place.

The Lords of Parlament in England were Judges, and most difficult causes have been heard and determined by them; yet few of them were much versed in the study of the Lawes, and fewer had made profession of them: and though they consulted with Lawyers, that were appointed to be present there for that purpose; yet they alone had the authority of giving Sentence.

In like manner, in the ordinary trialls of Right, Twelve men of the common People, are the Judges, and give Sentence, not onely of the Fact, but of the Right; and pronounce simply for the Complaynant, or for the Defendant; that is to say, are Judges not onely of the Fact, but also of the Right: and in a question of crime, not onely determine whether done, or not done; but also whether it be Murder, Homicide, Felony, Assault, and the like, which are determinations of Law: but because they are not supposed to know the Law of themselves, there is one that hath Authority to enforme them of it, in the particular case they are to Judge of. But yet if they judge not according to that he tells them, they are not subject thereby to any penalty; unlesse it be made appear, they did it against their consciences, or had been corrupted by reward.

The things that make a good Judge, or good Interpreter of the Lawes, are,

  • first A Right Understanding of that principall Law of Nature called Equity; which depending not on the reading of other mens Writings, but on the goodnesse of a mans own naturall Reason, and Meditation, is presumed to be in those most, that have had most leisure, and had the most inclination to meditate thereon.
  • Secondly, Contempt Of Unnecessary Riches, and Preferments.
  • Thirdly, To Be Able In Judgement To Devest Himselfe Of All Feare, Anger, Hatred, Love, And Compassion.
  • Fourthly, and lastly, Patience To Heare; Diligent Attention In Hearing; And Memory To Retain, Digest And Apply What He Hath Heard.

Leviathan, Chapter XXVI: Of Civill Lawes

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Peace at Christ-tide

This Melchizedeck was King of Salem, Priest of the most high God, vers. 2. First being by interpretation King of Righteousnesse, and after that also King of Salem, which is, King of peace. Whence it is cleare, that Christ the King in his Kingdome placeth Righteousnesse and Peace together.

  • Psal. 34. Eschue evill and doe good, seek Peace and pursue it.
  • Isaiah 9:6,7. Unto us a child is born, unto us a Sonne is given, and the government shall be upon his shoulder, and his name shall be called Wonderfull, Counsellour, the mighty God, the everlasting Father, the Prince of peace.
  • Isaiah 52:7. How beautifull upon the mountaines are the feet of him that bringeth good tidings, that publisheth Peace, that bringeth good tidings of good, that publisheth salvation, that saith unto Sion, thy God reigneth!

Luke 2:14.:In the Nativity of Christ, the voice of them that praised God saying, Glory be to God on high, and in earth Peace, good will towards men. And Isaiah 53:5. The Gospell is called the chastisement of our Peace. Isaiah 59:8. Righteousnesse is called the way of Peace. The way of Peace they know not, and there is no judgement in their goings.

Micah 5:4,5. speaking of the Messias, he saith thus, He shall stand and feed in the strength of the Lord, in the Majesty of the name of the Lord his God, and they shall abide, for now shall he be great unto the end of the earth; And this man shall be your Peace, Prov. 3:1,2. My sonne forget not my law, but let thine heart keep my Commandements, for length of dayes, and long life, and Peace, shall they adde to thee.

Thomas Hobbes: De Cive, Chapter IV. That the Law of Nature is a Divine Law.

Hobbes manifesto: taxes and publique charity

Equall Taxes

To Equall Justice, appertaineth also the Equall imposition of Taxes; the equality whereof dependeth not on the Equality of riches, but on the Equality of the debt, that every man oweth to the Common-wealth for his defence. It is not enough, for a man to labour for the maintenance of his life; but also to fight, (if need be,) for the securing of his labour. They must either do as the Jewes did after their return from captivity, in re-edifying the Temple, build with one hand, and hold the Sword in the other; or else they must hire others to fight for them. For the Impositions that are layd on the People by the Soveraign Power, are nothing else but the Wages, due to them that hold the publique Sword, to defend private men in the exercise of severall Trades, and Callings.

Seeing then the benefit that every one receiveth thereby, is the enjoyment of life, which is equally dear to poor, and rich; the debt which a poor man oweth them that defend his life, is the same which a rich man oweth for the defence of his; saving that the rich, who have the service of the poor, may be debtors not onely for their own persons, but for many more.

Which considered, the Equality of Imposition, consisteth rather in the Equality of that which is consumed, than of the riches of the persons that consume the same. For what reason is there, that he which laboureth much, and sparing the fruits of his labour, consumeth little, should be more charged, then he that living idlely, getteth little, and spendeth all he gets; seeing the one hath no more protection from the Common-wealth, then the other? But when the Impositions, are layd upon those things which men consume, every man payeth Equally for what he useth: Nor is the Common-wealth defrauded, by the luxurious waste of private men.

Publique Charity

And whereas many men, by accident unevitable, become unable to maintain themselves by their labour; they ought not to be left to the Charity of private persons; but to be provided for, (as far-forth as the necessities of Nature require,) by the Lawes of the Common-wealth. For as it is Uncharitablenesse in any man, to neglect the impotent; so it is in the Soveraign of a Common-wealth, to expose them to the hazard of such uncertain Charity.

Prevention Of Idlenesse

But for such as have strong bodies, the case is otherwise: they are to be forced to work; and to avoyd the excuse of not finding employment, there ought to be such Lawes, as may encourage all manner of Arts; as Navigation, Agriculture, Fishing, and all manner of Manifacture that requires labour.

The multitude of poor, and yet strong people still encreasing, they are to be transplanted into Countries not sufficiently inhabited: where neverthelesse, they are not to exterminate those they find there; but constrain them to inhabit closer together, and not range a great deal of ground, to snatch what they find; but to court each little Plot with art and labour, to give them their sustenance in due season. And when all the world is overchargd with Inhabitants, then the last remedy of all is Warre; which provideth for every man, by Victory, or Death.

From ‘Leviathan’, Chapter XXX

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University What It Is

That which is now called an University, is a Joyning together, and an Incorporation under one Government of many Publique Schools, in one and the same Town or City. In which, the principal Schools were ordained for the three Professions, that is to say, of the Romane Religion, of the Romane Law, and of the Art of Medicine. And for the study of Philosophy it hath no otherwise place, then as a handmaid to the Romane Religion: And since the Authority of Aristotle is onely current there, that study is not properly Philosophy, (the nature whereof dependeth not on Authors,) but Aristotelity.

And for Geometry, till of very late times it had no place at all; as being subservient to nothing but rigide Truth. And if any man by the ingenuity of his owne nature, had attained to any degree of perfection therein, hee was commonly thought a Magician, and his Art Diabolicall.

Now to descend to the particular Tenets of Vain Philosophy, derived to the Universities, and thence into the Church, partly from Aristotle, partly from Blindnesse of understanding; I shall first consider their Principles.

There is a certain Philosophia Prima, on which all other Philosophy ought to depend; and consisteth principally, in right limiting of the significations of such Appellations, or Names, as are of all others the most Universall: Which Limitations serve to avoid ambiguity, and aequivocation in Reasoning; and are commonly called Definitions; such as are the Definitions of Body, Time, Place, Matter, Forme, Essence, Subject, Substance, Accident, Power, Act, Finite, Infinite, Quantity, Quality, Motion, Action, Passion, and divers others, necessary to the explaining of a mans Conceptions concerning the Nature and Generation of Bodies. The Explication (that is, the setling of the meaning) of which, and the like Terms, is commonly in the Schools called Metaphysiques; as being a part of the Philosophy of Aristotle, which hath that for title: but it is in another sense; for there it signifieth as much, as “Books written, or placed after his naturall Philosophy:”

But the Schools take them for Books Of Supernaturall Philosophy: for the word Metaphysiques will bear both these senses. And indeed that which is there written, is for the most part so far from the possibility of being understood, and so repugnant to naturall Reason, that whosoever thinketh there is any thing to bee understood by it, must needs think it supernaturall.

……

Then for Physiques, that is, the knowledge of the subordinate, and secundary causes of naturall events; they render none at all, but empty words. If you desire to know why some kind of bodies sink naturally downwards toward the Earth, and others goe naturally from it; The Schools will tell you out of Aristotle, that the bodies that sink downwards, are Heavy; and that this Heavinesse is it that causes them to descend: But if you ask what they mean by Heavinesse, they will define it to bee an endeavour to goe to the center of the Earth: so that the cause why things sink downward, is an Endeavour to be below: which is as much as to say, that bodies descend, or ascend, because they doe. Or they will tell you the center of the Earth is the place of Rest, and Conservation for Heavy things; and therefore they endeavour to be there: As if Stones, and Metalls had a desire, or could discern the place they would bee at, as Man does; or loved Rest, as Man does not; or that a peece of Glasse were lesse safe in the Window, than falling into the Street.

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Some Foolish Opinions Of Lawyers Concerning The Making Of Lawes

Seeing then all Lawes, written, and unwritten, have their Authority, and force, from the Will of the Common-wealth; that is to say, from the Will of the Representative; which in a Monarchy is the Monarch, and in other Common-wealths the Soveraign Assembly; a man may wonder from whence proceed such opinions, as are found in the Books of Lawyers of eminence in severall Common-wealths, directly, or by consequence making the Legislative Power depend on private men, or subordinate Judges. As for example, “That the Common Law, hath no Controuler but the Parlament;” which is true onely where a Parlament has the Soveraign Power, and cannot be assembled, nor dissolved, but by their own discretion. For if there be a right in any else to dissolve them, there is a right also to controule them, and consequently to controule their controulings.

And if there be no such right, then the Controuler of Lawes is not Parlamentum, but Rex In Parlamento. And where a Parlament is Soveraign, if it should assemble never so many, or so wise men, from the Countries subject to them, for whatsoever cause; yet there is no man will believe, that such an Assembly hath thereby acquired to themselves a Legislative Power.

Item, that the two arms of a Common-wealth, are Force, and Justice; The First Whereof Is In The King; The Other Deposited In The Hands Of The Parlament. As if a Common-wealth could consist, where the Force were in any hand, which Justice had not the Authority to command and govern.

That Law can never be against Reason, our Lawyers are agreed; and that not the Letter,(that is, every construction of it,) but that which is according to the Intention of the Legislator, is the Law. And it is true: but the doubt is, of whose Reason it is, that shall be received for Law. It is not meant of any private Reason; for then there would be as much contradiction in the Lawes, as there is in the Schooles; nor yet (as Sr. Ed, Coke makes it (Sir Edward Coke, upon Littleton Lib.2. Ch.6 fol 97.b),) an Artificiall Perfection of Reason, Gotten By Long Study, Observation, And Experience, (as his was.) For it is possible long study may encrease, and confirm erroneous Sentences: and where men build on false grounds, the more they build, the greater is the ruine; and of those that study, and observe with equall time, and diligence, the reasons and resolutions are, and must remain discordant: and therefore it is not that Juris Prudentia, or wisedome of subordinate Judges; but the Reason of this our Artificiall Man the Common-wealth, and his Command, that maketh Law: And the Common-wealth being in their Representative but one Person, there cannot easily arise any contradiction in the Lawes; and when there doth, the same Reason is able, by interpretation, or alteration, to take it away. In all Courts of Justice, the Soveraign (which is the Person of the Common-wealth,) is he that Judgeth: The subordinate Judge, ought to have regard to the reason, which moved his Soveraign to make such Law, that his Sentence may be according thereunto; which then is his Soveraigns Sentence; otherwise it is his own, and an unjust one.

(Leviathan, Chapter XXVI. of civill lawes)

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